The Debate Continues: Appoint Or Elect Judges?

As She Stood Outside ...
... her local polling place in Bethlehem on Tuesday night, Christine Kemeter said it was easy for her to navigate the maze of local and state judicial candidates on this spring’s primary
ballot.

She just did her homework.

“I read a lot. I talked to a lot of people with
experience in the courts,” said Kemeter, a registered Republican, who
voted with her husband, Dan, at Wesley Church on Route 512 just outside
the city.

The same holds true for Jon Hammer, who voted early Tuesday evening at the Jewish Community Center in Allentown.

“I gathered as much information as I could online,”
said Hammer, whose day job is township manager in Bethlehem Township.
“I’m getting more and more information through the electronic media.”

But court-watchers fear that informed voters such as
Kemmeter and Hammer may have been the exception rather than the rule
this year as Pennsylvanians chose candidates for three statewide
appellate courts, county courts and local magistrates.

They also said Tuesday's anemic 14 to 15 percent
statewide turnout is another reason for Pennsylvania to take a hard
look at the way it selects its judges. Some advocate scrapping the
current electoral system for a hybrid where judges are initially
appointed and must later answer to the voters if they want to keep
their jobs.

“There’s no question we need to change. The only
question is whether it’s going to be to something that’s equally as
awful or to the highest quality we can get,” said Tim Potts, a
co-founder of the government reform group Democracy Rising. “We need to
have a real discussion and that hasn’t happened for years.”

One reason for that lack of a discussion is a lack of
information. In the best of years, it can be maddeningly hard to come
by, for two reasons.

First, unlike politicians, judges can’t say how
they’d rule on specific cases or issues that come before them. A court
decision a few years back loosened their tongues, allowing them to talk
judicial philosophy, but most remain circumspect.

And second, thanks to deep personnel cuts, local
newspapers often don’t have the manpower to delve deeply into races
where the candidates’ stances are nuanced and sometimes hard to explain.

Critics say that combination of factors has made the
races the exclusive province of three constituencies: political party
insiders, lawyers, and the big business interests who often find
themselves in the courtroom.

So instead of the voters picking judicial candidates
based on their temperament, experience and qualifications, external
factors such as geography, gender and party endorsements can often
carry the day.

“We got more calls than ever from people wanting to
know who to vote for, and they were frustrated that they couldn’t get
more information,” said Lynn Marks of Pennsylvanians for Modern Courts,
a Philadelphia-based reform group.

Of the 12 candidates who won in this week’s statewide
judicial races, all but a handful had received their party's official
endorsement. One won without the coveted recommendation of the Pennsylvania Bar Association.

And eight of 12 hailed from Allegheny County.
According to an analysis by the online news service,
Capitolwire, western Pennsylvania voters turned out in droves on
Tuesday, with 83,000 Democrats and 43,000 Republicans casting ballots
for Supreme Court.

In Philadelphia, which has 300,000 more people and
more than 100,000 more voters, the Capitolwire analysis found that only
69,000 Democrats and 11,000 Republicans voted in the Supreme Court
primary.

The inescapable conclusion: small, but highly motivated groups of voters can determine the outcome of low turn-out elections.

For years, Marks’ group has proposed scrapping the
electoral system and replacing it with a hybrid system in which judges
would be appointed subject to Senate confirmation. The judges would
then have to run in non-partisan elections after four years on the job,
and then once-a-decade after that.
County judges and local magistrates would still have to run for office under the scenario that Marks’ group envisions.

“The thought behind that … is that trial judges are
better known to the local community,” said Andrew F. Susko, the
immediate past president of the Pennsylvania Bar Association, which has
supported merit-selection since 1949.

But Bruce Ledewitz, a Duquesne University law school
professor and outspoken courts critic, isn’t sure the state needs to
scrap an electoral system that’s been in place since the days of
President Andrew Jackson.

“The people who are running for the appellate courts
are the ones who’d be selected under an appointive system,” he said,
dismissing merit-selection as a chimera.

Ledewitz also said there’s a case to be made for keeping the election system for county courts, echoing arguments made by Susko.
“I don’t have any greater confidence in the executive or legislative branches to do a better job than the public,” he said.